Barbershop

10:36 am

Fri June 1, 2012

Should John Edwards Be Retried?

I'm Michel Martin, and this is TELL ME MORE, from NPR News. Now it's time for our weekly visit to the Barber Shop, where the guys talk about what's in the news and what's on their minds.

Sitting in the chairs for a shape-up this week are freelance journalist Jimi Izrael, with us in Washington, D.C. Syndicated columnist Ruben Navarrette is in San Diego. In New York City today is Paul Butler. He's a law professor at George Washington University. And from the National Review magazine and the Texas Public Policy Foundation, Mario Loyola. He's in Austin, Texas.

Take it away, Jimi.

JIMI IZRAEL: Thanks, Michel. Hey, fellas, welcome to the shop. How we doing?

RUBEN NAVARRETTE: Doing great, man.

MARIO LOYOLA: Que pasa, amigos.

PAUL BUTLER: What's up?

IZRAEL: OK. Well, let's get things started. We're going to kick it off. Talk a little bit about stuff on a legal theme. Crime and punishment, how the justice system works and who it works for. Da, da, da, da. OK.

Well, all right. Let's discuss the John Edwards verdict. The former senator and Democratic presidential candidate faced corruption charges for allegedly using campaign funds to hide his pregnant mistress. And you got to hate when that happens.

Yesterday, a jury found him not guilty on one charge and deadlocked on the five others. It sounds like an OJ trial.

MARTIN: Stop it.

IZRAEL: The judge declared a mistrial on all those counts, Michel. What?

MARTIN: Well, I do think it's important to point out that, in the OJ trial, somebody died, so...

IZRAEL: That - and that...

MARTIN: Two people died, so let's...

IZRAEL: Right. That's...

MARTIN: So that's not the situation.

IZRAEL: Yeah. That's no fun. Right.

MARTIN: No. But, you know, John Edwards talked about - remember, two-time presidential candidate. Was on the vice presidential ticket. You know, came this close. And - so a huge scandal, but he's been out of politics. He talked outside the courthouse shortly after the verdict came in. He said that he thanked the jurors. He says he doesn't believe he did anything illegal. He says he does accept responsibility for what he did wrong, and here's a short clip.

(SOUNDBITE OF PRESS CONFERENCE)

JOHN EDWARDS: I am responsible, and if I wanted to find the person who should be held accountable for my sins, honestly, I don't have to go any further than the mirror. It's me. It is me, and me alone.

IZRAEL: Oh, I think I want to cry. Thanks, Michel. You know what? Edwards had faced a maximum of 30 years in jail had things gone another way. But from the get-go, some critics said that the case was weak, that Edwards was really on trial for being a jerk. We all know that his wife Elizabeth Edwards died of cancer after the very public unraveling of their marriage.

Paul Butler, what do you think of the verdict? And do you think the case was overcharged to begin with?

BUTLER: Absolutely, Jimi. I used to be a public corruption prosecutor, and even I have a hard time explaining what this case was about, what exactly the crime was. These are overreaching prosecutors who acted like bullies, as prosecutors do all the time, but this time, it backfired big time.

So Edwards is right. He's guilty of being a conniving, two-timing cad, but every jerk's not a criminal. He ought to be judged in the court of public opinion, but not a court of law.

MARTIN: You know, Paul, I was really interested in talking to you about this. I'm glad you're here, because, based on your experience, why do you think prosecutors went forward with this case? I mean, sort of the noteworthy issue here is that the funds were delivered after he'd already dropped out of the race. So that was part - you know, a key piece of evidence was to say, if he was trying to hide this from anybody, he was trying to hide it from his family.

So, Paul, why do you think, just based on your experience? Any theory on this?

BUTLER: You know, Michel, honestly, I don't know. This is the squad and the Justice Department that I used to work for, and they've had some high profile losses. You know, they were involved in the botched prosecution of Senator Stevens, and they had this big case in Alabama that they lost.

But, you know, the rule is, when you go after the king, you've got to kill him. So this was kind of a dumb case to bring because, you know, Stevie Wonder could have seen this coming. I don't know any experienced prosecutor who thought they were going to win this case.

IZRAEL: Ruben. Ruben Navarrette...

NAVARRETTE: Yes, yes.

IZRAEL: Do you think the government should seek a retrial?

NAVARRETTE: Yeah. That's a separate question. I'd say no. I don't think - I think that retrials, in general, are very rare - should be very rare, and they should be used only in a case where, you know, the case was so - the crime was so - the alleged crime was so heinous and there was such a major blunder at trial or something where, you know, we got to go and take another bite of the apple here.

I think that, listening to those comments, I want to say that John Edwards has learned his lesson. I would hope he has learned his lesson in terms of the destruction he wrought on his own family. You know, he's got kids, and the fact that he put them all through this, the fact that he did what he did to a wife who was dying, that he tried to cover it up.

Really, the issue here comes down to the testimony that was offered that, either with or without Edwards' knowledge, the campaign to elect John Edwards sought out a wealthy donor to act as his sugar daddy - or his sugar mommy, in this case - to be able to put up the mistress, to cover this up for the sake of preserving this campaign.

Now, the debate is always about whether or not Edwards knew. He claimed he didn't know. He had no knowledge that this money was coming in and that, you know, all of a sudden his mistress was put in a comfortable setting so she wouldn't talk and there wouldn't be an end to the campaign. This went on while he was running for president - at least in the beginning of it. So, again, we don't know what he knew or what he didn't know but there was clearly a misappropriation of what someone thought, the donor thought were campaign funds.

MARTIN: How do we know that?

NAVARRETTE: Because the donor says I thought they were campaign funds.

MARTIN: OK.

NAVARRETTE: The donor says I thought it was helping this person who I admired, John Edwards, get elected to president. And then at some point she wrote I, you know, he's going to have to find somebody else to take care of his girlfriend. I'm out of this. Because when...

MARTIN: OK. But she didn't testify, Ruben. I mean what she said to a journalist and what she may have said to somebody is not testimony. She didn't testify. She didn't take the stand.

NAVARRETTE: You asked me a question: how do we know? Because she said it.

MARTIN: OK.

NAVARRETTE: She felt this way because she said it.

MARTIN: OK. But if her testimony and this was strong enough why didn't prosecutors call her? That's what you have to ask yourself.

NAVARRETTE: I don't - I don't know.

MARTIN: Yeah. I feel you.

NAVARRETTE: I know there seems to be a case of fraud here committed is not my Edwards himself - very possibly by the people who worked for Edwards - at least appropriating what someone thought was campaign money, donation money and using it for this purpose. And when that person found out, she said no more, I'm cutting you off. So, you know, do with it what you will. There's a lot of sin here going all over the place and this was not a case of it not being connected to him running for president. There were a lot of people who worked for Edwards who felt that this could sink his campaign and they were certainly correct about that and they tried to protect him, and protect themselves.

IZRAEL: All right. Well, Mario Loyola, Super Mario, I know you've got something to say about this next case we're talking about. Brian Banks was exonerated last week after serving five years for rape that he never committed. Plus, or and, there was another five years of probation as a registered sex offender. Michel, you got more of this, yeah?

MARTIN: Sure. This was - well, yeah. I don't know if everybody's kind of keyed into this, but I know that all that you have. He was a high school football star. He was accused of raping a young woman. His lawyer advised him to plead no contest to avoid risking decades behind bars. And after he was released, after having served the sentence, his accuser reached out to him and she friended Banks on Facebook and met with him to apologize. And he secretly recorded the conversation where she admitted that the rape never happened. And I want to play a clip of what he said about this in a recent interview on NPR's ALL THINGS CONSIDERED.

(SOUNDBITE OF ARCHIVED AUDIO)

BRIAN BANKS: It comes to a point while serving that time that you realize you're not going to survive in prison or progress as a human being if you allow yourself to continue to hold onto this negative energy, these negative ideas, this anger, this bitterness.

IZRAEL: Wow.

MARTIN: OK. So the Seattle Seahawks have invited him to try out and other teams say they're interested in. So you hear it from him that he says he's moving on. But guys, I wonder if you think that should be the end of it. I don't...

IZRAEL: You know what, Michel? Part of me wants Banks to sue that young lady into the Stone Age. Yet, there's another part of me that really admires this young man for just kind of brushing his shoulders off and deciding just live his life, just being a bigger human being, because sometimes that's what it takes. Obviously, this young lady is very troubled and this whole thing is very troubling. But it reminds me of a piece I wrote for the Lexington Herald Leader about the same kind of thing. The law has to figure out some way to deal - to protect men from false rape claims. I have no idea what that protection looks like. I mean that's above my pay grade. But somebody, somebody needs to look into that.

Speaking of somebody looking into that, Professor Paul Butler, you got the law degree in the shop. Weigh in.

BUTLER: Put her under the jail.

IZRAEL: OK.

(LAUGHTER)

BUTLER: What she did was a crime. Brian Banks didn't commit a crime, she did. You can't file a false police report. Not only did she destroy 10 years of this man's life, she undermines the whole system. This will make it more difficult for actual victims to be believed.

And I have to tell you, I take this case a little personally because based on a false accusation, I got prosecuted for crime I didn't commit. Thank God, I didn't plead guilty. I actually considered it and it - thank God it took the jury less than 10 minutes to find me not guilty. And, you know, this part is a little bit more emotional than legal, but when the false accuser is a black woman it hurts you even more.

IZRAEL: Word.

BUTLER: There's a whole bloody history there.

IZRAEL: Really?

(LAUGHTER)

MARTIN: But, you know, the other thought though - occurs to me though, is when this young man was executed, it wasn't between these two private individuals. It is the state versus him. So the question I have is why doesn't the state have an interest in bringing accountability here?

LOYOLA: Right. Right. Right.

MARTIN: Because she wasted the resources of the community, along with his life. Not to mention, she received a large settlement from the school district - a large financial settlement in connection with this. I don't know. Who else? Mario, you want to - what do you think?

LOYOLA: Yeah. There's more law degrees in the shop, Jimi.

IZRAEL: My fault, dude. Go ahead, man.

(LAUGHTER)

LOYOLA: There's...

IZRAEL: Go pop your collar. Go ahead. Get yours.

MARTIN: Get your degree, men. Get yours.

LOYOLA: Some of us like to keep it a secret and stuff. Don't worry about...

MARTIN: Oh, snap.

(LAUGHTER)

LOYOLA: But look, I mean this is a problem where - and the state does have an interest. I mean she may have committed a crime here and she may well be prosecuted for it. But look, I mean I think that that tragedy for - I'm still completely mystified by what happened here and how she even came to make these accusations in the first place. And so I think that what to do about her and what judgments we come to about her, it still depends on a lot of information that's not public yet.

But as far as, you know, Brian is concerned, you know, it's a real tragedy and part of the tragedy, I have to admit responsibility for was what was really a conservative idea to start with, which is mandatory minimum sentencing. I mean because that's the cudgel that prosecutors use when they present a plea bargain. And they're like look, we've got - if you go to trial you face a substantial risk of decades in jail because of mandatory minimum sentencing. So we can't even ask for a low - and, you know, if they can't ask for a lower sentence then you're facing the prospect of choosing between no, you know, no fair trial if you go to trial and there's obviously no fair trial if you agree to the plea bargain.

And so the combination of prosecutorial discretion and mandatory minimum sentencing is really fraught with problems like this, especially, you know, for young African-Americans or other minorities that have historically high conviction rates. It's a real problem we need to look at it and it's a tragedy all around.

MARTIN: We're in the beauty - sorry, we're in the Barbershop. Sorry, guys, we're in the Barbershop.

IZRAEL: Thanks, Michel. All right. Ruben, you're first in on this joint, man, next topic, because you wrote a column about this earlier in the week.

NAVARRETTE: Yo.

IZRAEL: Former "Desperate Housewives" star Eva Longoria tried to launch a show about Latina housekeepers. It was called "Devious Maids." Ay, papi.

(LAUGHTER)

IZRAEL: However, ABC nixed the show...

NAVARRETTE: Right.

IZRAEL: ...even before it aired. Now you took some shots on...

MARTIN: Yeah. I was so fascinated by this, Ruben because, you know, I'm just - as a writer yourself, I mean the idea of saying this shouldn't exist before we even have a chance to see whether it is worthy to exist.

NAVARRETTE: Yeah. Yeah.

MARTIN: I mean that's - I'm fascinated by that.

NAVARRETTE: Well, ABC - yeah.

IZRAEL: Intellectually dishonest.

I'm sorry. Go ahead, Ruben.

NAVARRETTE: Yeah. Yeah. Well, ABC saw the pilot. They saw the pilot, they said it was horrible and they killed it. But I...

MARTIN: Or maybe they so your column.

NAVARRETTE: Yeah. Well, no, I think they killed it before the column. But the main point here is that, to correct the record, this was not Eva Longoria who came up with this show idea. This was Marc Cherry. Marc Cherry is a very successful, now very wealthy, producer, creator of "Desperate Housewives" and he made a fortune on that show. He created this idea of "Devious Maids." This was a Marc Cherry production.

We know this because a year ago we were hearing and reading about the fact that he was working on a show of this title and the concept was these for Latina maids. And it wasn't until about March, yeah, March, that I heard that Eva Longoria had attached herself to this or had been asked to attach herself to this. In April she started defending the idea publicly and in May, by May, ABC had killed it.

So this was an attempt by Marc Cherry to put up a Latina front, OK, a front person, to say, you know, you want criticism, you want to shoot at this pilot, here, shoot at this person. And she very unwisely, very - and gullibly went out there and filled that role and defended this concept. And so consequently, all the Latino anger and arrows were shot at Eva Longoria instead of it Marc Cherry, a real...

MARTIN: Well, it was her...

IZRAEL: Wait a second, though.

MARTIN: That was her choice. I mean and the fact that it's based on a telenovela.

LOYOLA: Yeah. Hold on. No...

IZRAEL: Yeah, but there's more here, though.

NAVARRETTE: I'm just clarifying - I'm clear...

MARTIN: Go ahead, Mario.

NAVARRETTE: ...clarifying the record. Clarifying the record. I'm clarifying the record to make sure that it's not about...

IZRAEL: Still?

NAVARRETTE: She - this did not come out of her head.

LOYOLA: Look...

NAVARRETTE: OK. This did not come out of that head. This came out of somebody else.

MARTIN: Nor is his either. It came out of a telenovela.

IZRAEL: Right .

LOYOLA: Yeah. Ruben?

NAVARRETTE: She - no, no, no. It was a...

MARTIN: Go ahead, Mario...

NAVARRETTE: It was an adaptation of a telenovela. But here's the problem, people are comparing this for instance to "The Help." You can't compare this to "The Help." "The Help" was a great movie at the right time after there have been decades of positive portrayals of African-Americans in film and television. Latinos don't have that kind of history to fall back on. They are typically seen as, and portrayed as drug dealers, gardeners and maids. And that's why this kind of show should not have gone. I'm glad they canceled it.

MARTIN: Mario, what you think?

LOYOLA: I - yeah, I think that Ruben is being what in Puerto Rico is called un party pooper.

(LAUGHTER)

LOYOLA: And...

NAVARRETTE: No.

LOYOLA: And look, I mean Latinos love making fun of themselves and, you know, it's very instructive and illuminating that the show was very popular in Mexico and nobody took great offense at it because people make fun of each other all the time in Latin America and it's fine. I mean you have to go to an American university before you can learn to be as touchy as some people are here.

MARTIN: Oh, snap.

IZRAEL: Ooh.

LOYOLA: And I think that...

MARTIN: But let me just say - but Mario, you know, what about this point that - and let me just emphasize here that everyone is not in love with "The Help." Let me just say that. No matter what decades of whatever, whatever people aren't in love with "The Help."

BUTLER: True that.

NAVARRETTE: Good show.

MARTIN: But Mario, what about his argument that there hasn't enough been - there's been no "Julia." There's been no "Cosby Show" for Latinos.

LOYOLA: Right.

MARTIN: So that hasn't existed even as a predicate to this. What about Ruben's point?

IZRAEL: But there was an "I love Lucy." I mean...

MARTIN: Well.

LOYOLA: Yeah. Yeah.

IZRAEL: I mean Latinos were first in integrating television, so I don't know that, that's...

MARTIN: And he owned the show.

IZRAEL: Right. So I mean that's argument - that argument has some leaks in it.

LOYOLA: That's a good point.

MARTIN: But what about it? But what about - Mario, when you think about Ruben's argument?

LOYOLA: Well, I mean look, I grew up in Miami and there was a great show in Miami on PBS, unfortunately. It didn't have a lot of reach outside the Cuban community but it was called "Que Pasa, USA?" And it was funny because it was exactly like everyone you know in Miami and exactly like everyone's grandmother, exactly like everyone's parents, exactly like everyone's cousin. And, you know, I mean look, I think that, I think that this society has gone a long ways in - since the '50s and the '60s in becoming really sensitive to cultural sensitivities of different communities. But it can - that can be taken too far. I mean stereotypes - and I know that Jimi's again, I'd like to get into a discussion with Jimi about this - I think stereotyping outside of your own community is fine. And I - because I think of stereotypes as archetypes and literature is based on archetypes. And if it weren't for archetypes people wouldn't be able to relate to literature. And, you know, I mean I'd love to see a drama that really captures life for the Latino community, but comedies are fine.

MARTIN: Yeah.

LOYOLA: I mean can you imagine a country, can you imagine how boring the United States would be if Jews were not allowed to make fun of each other, I mean of themselves? I mean you wouldn't have "Seinfeld"...

MARTIN: That's not what we're talking about here, though.

IZRAEL: Right.

(LAUGHTER)

LOYOLA: No, no, no. I know. But it's...

MARTIN: No, no. And please, and don't send me any - no watermelon postcards or were done. You and I are done, OK?

(LAUGHTER)

NAVARRETTE: And it's a programming note: next week will be bringing back a retrospective of "Amos and Andy."

(LAUGHTER)

MARTIN: Oh, snap. OK. All right. We'll leave it there for now.

Ruben Navarrette is a syndicated columnist who writes for The Washington Post Writers Group and Latino magazine, with us from San Diego. Mario Loyola is director of the Center for 10th Amendment Studies at the Texas Public Policy Foundation. That's a conservative think tank in Austin, Texas. And he's a columnist for National Review, with us from member station KUT in Austin. Paul Butler is a law professor at the George Washington University Law School, former federal prosecutor, with us from New York today. Jimi, Izrael, here in Washington, D.C., freelance journalist and presidential fellow at Case Western Reserve University.

And thank you all so much.

BUTLER: Great to be here.

NAVARRETTE: Thank you.

LOYOLA: Gracias.

IZRAEL: Yup-yup.

MARTIN: That's our program for today. I'm Michel Martin and this is TELL ME MORE from NPR News. Let's talk more on Monday. Transcript provided by NPR, Copyright National Public Radio.